Grier and Halter (Child support)

[2019] AATA 4341

Grier and Halter (Child support) [2019] AATA 4341 (12 August 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/SC016537

APPLICANT:  Ms Grier

OTHER PARTIES:  Child Support Registrar

Mr Halter

TRIBUNAL:Member P Sperling

DECISION DATE:  12 August 2019

DECISION:

The tribunal affirms the decision under review.

CATCHWORDS

CHILD SUPPORT – percentage of care – no change to the likely pattern of care – no special circumstances for late objection - decision under review affirmed

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)-16(2AC) of the Child Support (Registration and Collection) Act 1988.

REASONS FOR DECISION

BACKGROUND

1. Ms Grier and Mr Halter are the parents of  [(the child)]. Mr Halter is the parent liable to pay child support.

2. The Department of Human Services – Child Support (the Department) determined that, from 11 October 2016, Mr Halter had a percentage of care of 100% for the child and Ms Grier had a percentage of care of 0% for the child.

3. On 28 June 2018 the Family Assistance Office, Centrelink (FAO) advised that the care of the child had changed such that both parents had 50% care of the child from 21 May 2018.

4. On 1 December 2018 the Department decided to change the care determination to reflect that Mr Halter had 50% care of the child and Ms Grier had 50% care of the child with effect from 28 June 2018. Mr Halter disagreed with the decision and lodged an objection on 13 February 2019. On 29 April 2019, an objections officer allowed Mr Halter’s objection and the care was changed to reflect that Mr Halter had 100% care of the child and Ms Grier had 0% care of the child with effect from 13 February 2019.

5. On 15 May 2019, Ms Grier lodged an application to the Administrative Appeals Tribunal (the tribunal) for a review of the decision. The hearing took place on 12 August 2019. Ms Grier and Mr Halter participated in the hearing via conference telephone and gave sworn evidence. In making its decision the tribunal took into consideration the documents (numbered 1 to 125) provided by the Department which were also sent to Ms Grier and Mr Halter.

CONSIDERATION

1. The law that applies in this case is the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration Act).

Has there been a change in the care of the child?

1. Mr Halter and Ms Grier confirmed that there were no court orders or parenting plans in place for the care of the child and no written agreement between the parents. The care changed along the way, based on the wishes of the child at the time and not as a result of negotiation between the parents.

2. Ms Grier told the tribunal that she believes she has shared care of the child, as she is the child’s mother, and she wants some acknowledgement of that. She said that, on this basis sometime in 2018 she contacted Centrelink and advised that she had shared care, or 50% care of the child, because she cared for the child as well as Mr Halter.

3. Mr Halter told the tribunal that before May 2016 he and Ms Grier had shared care but since October 2016 he had care of the child every night except when the child wanted to stay with Ms Grier, which Mr Halter says has been an average of five nights per month. He said that there has been no consistent pattern as to when the child chooses to stay with Ms Grier, and that some months it is more than five nights and some months less.

10.Section 50 of the Act requires a new determination of a percentage of care to be made where an existing determination has been revoked and the tribunal is satisfied either that the person has had, or is likely to have, a pattern of care during a care period.

Should the existing care determinations in relation to the child be revoked?

11.Subsection 54F(1) of the Act, as it was then, sets out certain circumstances in which a determination of a percentage of care must be revoked. Specifically, it states that an existing determination must be revoked if the Registrar is notified that the care taking place does not correspond with the responsible person’s existing care of the child or children.

1. In this case, the tribunal has determined that a care determination was made under section 50 of the Act from 11 October 2016 and that Ms Grier had a percentage of care for the child of 0% and that Mr Halter had a percentage of care of 100%. Therefore, paragraph 54F(1)(a) of the Act, as it was then, is satisfied. FAO contacted the Department on 28 June 2018 and advised that there had been a change in care for the child such that the care that was taking place from 21 May 2018 did not correspond with the existing percentage of care as determined. Therefore, paragraph 54F(1)(c) of the Act, as it was then, is satisfied.

13.The Act also requires that there would be a change in the cost percentage if another percentage of care were determined for Mr Halter under section 50 of the Act. Section 50 of the Act provides that if the tribunal revokes a determination and is satisfied that a party has had, or is likely to have, a pattern of care of a child, the tribunal must determine the care during the care period. “Actual care” may be worked out based on the number of nights the child was or will be in the care of the person (subsection 54A(1) of the Act).

14.The tribunal is required to consider what actual care Mr Halter and Ms Grier have had, or are likely to have, during the care period. The care period is such a period as the Child Support Registrar considers to be appropriate having regard to all the circumstances (section 50 of the Act). The Department’s policy in this regard, as set out in Chapter 2.2.1 of the Child Support Guide, is that a care period is generally a 12-month period from the day on which the actual care for a child changed. This policy is not binding on the tribunal but the tribunal has determined that it is appropriate in this matter to have regard to it. In this case, the Department determined that the care period should start from 28 June 2018 and that tribunal is satisfied that this is appropriate being the date on which FAO advised the Department that care had changed.

15.The tribunal found that Ms Grier’s evidence during the hearing was inconsistent. Ms Grier acknowledged that the child had been living primarily with Mr Halter since 2016. During the hearing she variously stated in her evidence that sometime in 2018 the child had started to stay overnight with her:

·       two or three days per week;

·       two or three days every now and then; and

·       two or three days every couple of weeks.

1. Ms Grier also provided a number of specific dates on which she thought the child had stayed with her in 2018 and 2019 totalling about 15 days in 2018 and 28 days between March and August 2019. She said that the child had also stayed with her on other nights but she didn’t have records of the exact dates that this had occurred. The tribunal notes that the dates Ms Grier did list during the hearing were not consistent with the various dates that she provided to the Department on 25 February 2019, 28 March 2019, 29 March 2019, 8 April 2019 and 9 May 2019.[1] The tribunal also notes that Ms Grier advised during the hearing that she is unable to find her calendar for 2018 to further verify these dates.

17.Ms Grier had also provided the Department with a letter of 29 March 2019 from her daughter-in-law “[Ms A]” who, at the time of writing, stated that she lives with Ms Grier. This letter states that the child stays two to three nights per week with Ms Grier as well as weekly shared care between both parents during the school holidays. When asked by the tribunal about the school holiday arrangements Ms Grier did not confirm what was outlined in this letter but did say that the child sometimes stayed with her during the school holidays. The tribunal notes that neither parent claimed that Ms Grier had 50% care of the child during school holidays, as implied in this letter. As such, the tribunal was not satisfied that this letter was an accurate reflection of the care arrangements in in place during the period under consideration.

18.Mr Halter advised that he did not keep records of when the child was in his care, because he had care almost all of the time. He stated that he lives with his father, Mr [B], who can vouch for the care he provides for the child. He provided a letter to the Department dated 11 March 2019 from Mr [B]. This letter states that the child and Mr Halter live at Mr [B]’s house and only stays with her mother for a maximum of four to five nights per month, even taking into account school holidays.

[1] Departmental documents pages 54, 59, 61, 64 and 109

1. Mr Halter disagreed with Ms Grier’s view of the care arrangements. He conceded that Ms Grier provided occasional nights of care but said that this is irregular and not a consistent pattern of care.

2. The tribunal is not satisfied that there was a change in the pattern of care for the child from 21 May 2018, as notified by Ms Grier to the FAO. While there may have been changes to the prior care arrangements such that Ms Grier began providing some care for the child, the tribunal is not satisfied that this has resulted in a higher percentage of care such that there would be a change in Mr Halter’s cost percentage that was being used by the Department. Furthermore, the tribunal finds that Ms Grier’s evidence about when she had care of the child is inconsistent and therefore unreliable. In the absence of clear evidence to substantiate that a change in the care has occurred or is occurring, the tribunal has difficulty accepting that a change has occurred and from when any change occurred.

3. Therefore, the tribunal is not satisfied that there has been a change in the care which constitutes a change to the pattern of care, as required under section 50 of the Act. Accordingly, the tribunal has decided not to revoke the existing care determination.

4. As the tribunal has concluded that the care percentages were the same as Ms Grier and Mr Halter’s care percentages from 11 October 2016, paragraph 54F(1)(d) of the Act, as it was then, is not satisfied. In the circumstances the tribunal cannot revoke the existing determination of percentages of care as there has been no change in the care percentages.

Date of effect of the tribunal’s decision

1. Subsection 87AA(1) of the Registration Act provides that if a person was served with a notice of the decision, the decision has effect from the date the person lodged the objection if the objection was lodged more than 28 days after the notice of the care percentage decision was served. Subsection 87AA(2) of Registration Act provides an exception to that general rule in that if the Registrar is satisfied that there are special circumstances that prevented the person from lodging the objection within 28 Days, the Registrar may determine that subsection (1) applies as if the person objected within time. The tribunal notes that special circumstances must have prevented Mr Halter from lodging an objection within 28 days. In this case the objections officer decided that, under section 87AA of the Act, the date of effect of the objections officer’s decision was 13 February 2019 because Mr Halter objected more than 28 days from the original decision and that special circumstances did not prevent him objecting earlier.

2. The tribunal notes that neither Mr Halter nor Ms Grier specifically applied to the tribunal for a review of the decision made under subsection 87AA of the Act regarding the date of effect of this decision. Accordingly the tribunal has not reviewed or changed the date of effect of the objection decision.

1. In summary, the Department’s decision is legally correct and is affirmed.

DECISION

The tribunal affirms the decision under review.